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The Court of Appeal in R v Johnson & Others [2016] EWCA Crim 1613 (Lord Thomas LCJ; Sir Brian Leveson PQBD; Hallett LJ) heard conjoined applications for permission to appeal, which considered the effect of the decision of the Supreme Court in R v Jogee[2016] UKSC 8 on appeals against conviction since the change in the law of joint enterprise, on grounds of misdirection of the jury prior to the change in the law.

The Supreme Court decision

In R v Jogee the Supreme Court decided that what had been called the doctrine of ‘parasitical accessorial liability’ was no more. In practical terms, and often in the context of multi-defendant trials (frequently murder) where the actual act of killing was done by one person but others were jointly indicted for murder, the Court rejected the principle that a secondary party could be convicted based on foresight only of what the principal might intentionally do. The Supreme Court ruled that a co-defendant must also have the same intention. Foresight may be used as evidence only of the defendant’s intention, rather than as an inevitable yardstick of common purpose.

This has clearly led to a very large number of cases being reconsidered where the jury has been directed in accordance with the way the law had been previously understood since the decision in Chang Wing Siu v R [1985] A.C. 168 (now disapproved).

The Court of Appeal decision

In Johnson the Court of Appeal heard 12 separate applications for permission to appeal on the grounds of misdirection by the trial Judge in using the law of joint enterprise as it had been understood prior to the decision in Jogee.

In rejecting the applications, the Court expressed the following:

If the change in the law had been by statute, there would be no question of revisiting the convictions, as the new law would apply only prospectively.

The Supreme Court’s judgment in Jogee considered the law both prospectively and retrospectively.

Appeals brought in time had to be judged in accordance with S.2(1) of the Criminal Appeal Act 1968. The critical test is whether the conviction had been rendered unsafe, not simply whether there had been a misdirection of law.

Therefore it does not follow that if the jury was directed according to the way in which the law was understood at the time, even though this has now been changed by the judgment in Jogee, the conviction will automatically be rendered unsafe. A misdirection of law that did not relate to a central issue in the trial would not by itself lead to a conviction being unsafe.

Where an application for permission to appeal was being brought out of time, the right approach was to ask whether any substantial injustice had been done. If a person was properly convicted according to the law as it then stood, the application would not be allowed unless it was demonstrated that a substantial injustice would otherwise be done. There was a wide public interest in legal certainty and the finality of decisions made in accordance with the law. The Court particularly took note of the interests of the victim and their family.

The burden of demonstrating that there had been a substantial injustice was for the applicant.

In considering whether that test had been met, the Court would have regard to the strength of the argument that the change in the law would have made a difference.

The Court would also look at whether the applicant was guilty of other less serious criminal conduct.

The length of time which had elapsed was irrelevant. The issue was whether there was a substantial injustice.

If the court exceptionally granted leave, it would move on to consider whether the conviction was unsafe.

The practical impact of the Supreme Court judgment

The overall effect of the judgment is that each case must be considered on its own merits, not simply on the grounds of a misdirection at trial on the law of joint enterprise as it is now stated since Jogee. It will be necessary to point to the features of the case which may have made a difference to the outcome if the jury at the trial had been directed in accordance with the current (post-Jogee) law.